Should Law Reviews Charge for Submissions?

Yesterday I read this post about possible changes in the way that law professors submit articles to student-run journals. One issue is that electronic systems have led to a sharp increase in the number of submissions at many journals, and they basically just cannot handle the volume. This problem is compounded by the risk-averse practice of submitting to every journal, which I know some people do, so they can generate an offer and seek expedited review.

There are many ways to deal with this problem–exploding offers, for example–but here’s one that should get more attention. Normally rationing occurs through prices, so why don’t law reviews just charge for submitting? They would make money (and could become self-sustaining) and fewer people would submit. If law schools absorb submission costs, then that would not do much to stem the tide. Then again, that could just mean that law reviews could charge fairly high prices for the privilege of submitting until they reach a price point where schools would start limiting the number of submissions that their faculty could make.

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Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

7 Responses

This idea woud serve only to further marginalize and de-value the relationship practitioners have with journals. Unlike professors, whose institutions are invariably eating the cost of their faculty’s submissions, practicing attorneys who want to remain involved in scholarship have to foot the bill on their own.

Although $2 a pop (say, for express-o) may not sound like a lot, you have to remember that a great number of practicing attorneys that write articles (particularly those who are subject-matter experts in “hot topics” like criminal law or constitutional law, or agency-specific topic areas, like environmental or financial regulation) are government attorneys, making substantially less than their private practice counterparts.

Putting yet more hurdles, particularly of the financial variety, between non-professor authors and journals would be a terrible mistake.

Great post! “Recent graduate” has a good point about practitioners — which I think would also apply to academic job seekers (who pay hundreds for AALS, flights to AALS,etc.). But there seems a relatively easy solution — waive the “submission” fee for government attorneys, small firm lawyers/solo practitioners, academic fellows, etc.

There might be some distributional consequences, though. If law schools absorb the cost, they are really passing it on to their students — either by not resisting tuition hikes (or not offering discounts they otherwise would). The journals higher in the pecking order would get the most $$, but the schools lower down (and their students) would be footing the bill.

It would be a nice way, certainly, for the journals to get rid of submissions that are only intended to produce an offer to use for an expedite (which are a waste of a journal’s time).

As an economist I should like this, and I’ll add that other disciplines generally charge submission fees and seem to work. But I can foresee several potential problems:

1) You are going to see a massive inequality among journals. The Harvard Law Review has a far higher market-clearing price than the Podunk State Law Journal. Granted, there is inequality right now, but nothing makes it more visible and salient than a price tag.

2) The lower ranked journals are going to see a drop in submissions, but the drop will come mainly from a loss of the highest quality submissions. Granted, most of those are articles that they would not have gotten anyway once the expedite game was played out; but lower ranked journals can shut down the expedite game immediately by insisting on exclusive submission and exploding offers. The reason they don’t is that they figure that having some chance of getting a high quality article after expedite is better than having no chance at all (if the author never submits in the first place due to the exclusive submission policy). Charging a price for submission creates the same adverse-selection dynamic.

3) You are going to see massive inequality among schools. Rich, highly ranked schools will be able to absorb submission costs far more easily than poorer, lower ranked schools. And, as the prior commentator pointed out, practitioners and those without school funding will be funding the effort out of their own pocket. If you thought letterhead bias by journal editors produces a lot of inequality right now, just wait.

If law reviews feel they are getting too many low-quality submissions, they might not need to use the price system. Expresso or another service might just report to each journal where else an author has submitted. Law Reviews can give closer attention to articles submitted to, say, ten other journals than to articles submitted to, say, 100. Some law reviews already do a version of this with exclusive submissions. And if submissions become more public, it may induce authors to be pickier about where they submit.

On the rich-versus-poor schools issue, I think the distributive consequences are complicated. Elite school law professors often just send out their articles to the top dozen or two dozen law reviews, but professors at non-elite schools are likely to cast a much wider net, which will cost more. On the other hand, students at elite schools presumably are more likely to send out law review articles than students at non-elite schools, and if the school picks up the tab for its students those expenses will add up quickly.

So, I’m a little confused. What,exactly, is the problem? Is it really that student editors are “overwhelmed”? That seems kind of like a good problem for them to have! As you suggested, many “solutions” might work, including increasing the numbers of editors, or Lior’s, etc. But why would charging money to submit make sense? In other disciplines, journal go down this route because they provide actual R&R return to authors. What justifies the practice here?

Why, precisely, do we want to make editors’ jobs easier and diminish authors’ opportunities? Students take on responsibilities when they join law review, if they are overwhelmed by the workload (and as far as I know every generation of law review editors claims it is overwhelmed until they look back at their time on law review with great fondness and speak in past tense of how much they enjoyed it and the effort was worth it), they can increase the number of associate editors. This of course, is not in the students’ interests because it makes their positions less competitive, but I very much doubt employers would notice that the number of editors has increased at Law Review X.

I strongly disagree with Gerard’s post and agree with several statements above. Professors working at richer law schools (i.e. elite private schools) would disproportionately benefit from a system requiring fees for submission, practitioners will be hit particularly hard, and research budgets would be sapped more quickly.

Personally, I think the problem is with ExpressO. I didn’t like it when we moved to this system. Or, to be more clear, for environmental reasons I like that we’ve moved away from paper submissions, but would prefer that each law review simply require direct, e-mail submissions. This would create a time expenditure disincentive to blanket submissions.